The Competitive Enterprise Institute submitted a FOIA request to the Office of Science and Technology Policy for records sent to and from a non-official email account used by OSTP Director John Holdren. CEI alleged that Holdren was using his email account from when he previously worked at the Woods Hole Research Center to conduct official agency business. The agency responded that it was unable to search for the records because it had no control over the email account. CEI appealed the agency's response, insisting that Holdren had conducted agency business using his non-official email account. Characterizing CEI's appeal as a clarification of its request, OSTP agreed to search for any records contained in Holdren's official email account that contained records to or from his Wood Holes account. Because CEI believed the agency's response did not address the issues in its appeal, it filed suit.Complaint issues: conduct adequate search, production of Vaughn index, disclosure of all non-exempt records, find agency improperly responded to administrative appeal, declare emails from unofficial accounts are subject to FOIA, arbitrary and capricious behavior under APA, violation of Federal Records Act, duty to inform Archivist of FRA violation, attorney's fees

FOIA Project Annotation: Judge Gladys Kessler has ruled that the White House Office of Science and Technology Policy is not required to search OSTP Director John Holdren's email account maintained by his former employer Woods Hole Research Center for any OSTP-related emails because the agency does not have custody or control of the account. The Competitive Enterprise Institute requested any emails sent to Holdren's Woods Hole account that dealt with OSTP-related issues. OSTP told CEI that it did not have access to that account and could not search it. CEI appealed and the agency reaffirmed its position. CEI then sued under FOIA, the APA, and the Federal Records Act. Rejecting CEI's FOIA claims, Kessler noted that "the law is clear, however, that agencies do not�"merely by way of the employer/employee relationship�"gain 'control' over their employees' personal email accounts. That is precisely why agencies admonish their employees to use their official accounts for government business." She added that "CEI fails to cite any authority supporting the proposition that simply because Dr. Holdren heads the OSTP, his unofficial email account falls under the agency's control." Kessler pointed out that the Federal Records Act and the Federal Records Disposal Act provided administrative remedies for wrongful removal of records. However, the remedy under the FRA requires the Archivist to ask the Attorney General to investigate the improper removal of records and does not provide a private cause of action, except to the extent that a plaintiff can ask the Archivist to investigate a claim. But Kessler indicated that "the Complaint never directly alleges that Dr. Holdren failed to place copies of agency records on his official account." She observed that "CEI would have the Court interpret OSTP's refusal to search Dr. Holdren's unofficial account to be an admission that uncopied agency records reside there. That does not suffice to state a claim."
Issues: Agency Record - Possession

FOIA Project Annotation: Judge Gladys Kessler has resolved the remaining issue of whether the Office of Science and Technology Policy failed to disclose work-related emails from director John Holdren's personal email account, ruling that since the agency was not required to disclose duplicate records under the Federal Records Act and since the Competitive Enterprise Institute had failed to undermine Holdren's claim that he always copied work-related emails from his personal account to his official agency account for preservation purposes, the agency had conducted an adequate search by disclosing more than 600 pages of email from Holdren's agency account. After Kessler ruled previously that the agency was not required to search Holdren's account from his Woods Hole account because the agency did not have access to the account, CEI appealed to the D.C. Circuit, which ruled that work-related emails created by agency employees were subject to FOIA regardless of where they resided physically. On remand, Kessler first looked at the Federal Records Act issue, noting that "the Government has established, and CEI has failed to convincingly challenge, that Dr. Holdren complied with agency policy requiring him to forward all work-related emails from his private email account to his OSTP email account." Accepting statements from Holdren and the agency's General Counsel attesting that Holdren had consistently followed the practice of forwarding work-related emails received on his private email account to his official email account, Kessler pointed out that "the presumption that Dr. Holdren complied with OSTP policy is further strengthened by evidence submitted by the Government showing that Dr. Holdren complied with the policy on approximately 4,500 occasions." She added that "the fact that Dr. Holdren forwarded work-related emails from the Woods Hole account to his OSTP account on 4,500 occasions makes it more likely than not that he forwarded any particular work-related Woods Hole email to his OSTP account." CEI argued that while Holdren may have customarily complied with this policy, that presumption did not support a conclusion that he always complied. But Kessler observed that Holdren's affidavit explained that he tried to follow that practice at all times. She noted that "plaintiff's creative exercise in semantics is insufficient to overcome the presumption of credibility to which Dr. Holdren's declaration is entitled." She noted that "any work-related emails in Dr. Holdren's Woods Hole account are duplicates of emails located in his OSTP account." She added that "FOIA does not require agencies to produce duplicate records." Having found that Holdren consistently copied emails from his private account to his official account, Kessler concluded the agency's search of his official email account was sufficient. She pointed out that "Dr. Holdren admittedly used his private email account for work-related emails. However, plaintiff has presented absolutely no concrete evidence that he failed to forward any work-related Woods Hole email to his OSTP account. . .The Court finds that the Government need not produce Dr. Holdren's work-related Woods Hole emails because its search was reasonably calculated to uncover duplicates of all of the records located in the Wood Holes account."
Issues: Adequacy - Search

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/12/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 6/11/2014.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. OFFICE OF SCIENCE AND TECHNOLOGY POLICY served on 5/12/2014, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/12/2014. (Bader, Hans) (Entered: 05/19/2014)

2014-06-05

4

NOTICE of Appearance by Daniel Schwei on behalf of All Defendants (Schwei, Daniel) (Entered: 06/05/2014)

ORDER granting 5 Defendant's Consent Motion for Extension of Time; Defendant shall have up to and including July 11, 2014, in which to answer or otherwise respond to Plaintiff's Complaint. Signed by Judge Gladys Kessler on 6/6/14. (CL, ) (Entered: 06/06/2014)

Consent MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 07/30/2014)

2014-07-31

MINUTE ORDER granting 9 Defendant's Consent Motion for Extension of Time; Defendant shall have up to and including August 21, 2014, in which to file its Reply in support of its Motion to Dismiss. Signed by Judge Gladys Kessler on 7/31/14. (CL, ) (Entered: 07/31/2014)